Deportation, ISIS and the Irish Courts

Four_Courts,_Dublin,_IrelandHuman Rights in Ireland welcomes this guest post from Darragh Coffey. Darragh is a PhD Candidate in the Faculty of Law, Darwin College, University of Cambridge. 


The Court of Appeal is currently hearing arguments as to whether a man alleged to have links to the so-called Islamic State (IS) should be deported. While many of the facts of the current case, including the state to which the man is to be deported, remain subject to reporting restrictions, a number of issues are clear: The Government allege that the man in question poses a threat to national security and on that basis seek his deportation. For his part, the man claims that he has previously been tortured in the country to which he is to be sent and that if he is deported he will face a real risk of being ill-treated again due to the allegations of his links to IS, which he denies. Such challenges to deportation orders are not uncommon in European states; a notable example was the United Kingdom’s embattled attempt to deport Abu Qatada to Jordan which was finally successful in 2012.

Like the United Kingdom and all other EU member states, Ireland is a signatory of the European Convention on Human Rights (ECHR). The central legal issue in cases such as this stems from Article 3 of that Convention and the 1989 decision of the European Court of Human Rights in Soering v UK. Article 3 States that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The Soering case established that if an ECHR contracting state expels an individual to another state where substantial grounds exist for believing that he or she would face a real risk of suffering treatment proscribed by Article 3, then the ECHR contracting state would violate that provision by so doing.

The European Court of Human Rights has therefore read an implicit prohibition of return to a risk of torture or inhuman or degrading treatment or punishment into the text of Article 3. Furthermore in 1996 and again in 2008 the Strasbourg Court held that this implicit ban on sending individuals to states where they may be ill treated is absolute. In other words the behaviour of the individual or the threat that he or she poses to the host state, no matter how serious, cannot be taken into account to justify the deportation if there is a real risk that he or she will be ill treated. Article 3 therefore enshrines a very robust and not uncontroversial protection against return to ill treatment.

This means that if, in the case currently before the Court of Appeal, the applicant’s legal team can show substantial grounds for believing that he will be at real risk of torture or inhuman or degrading treatment following deportation, then according to long standing jurisprudence of the European Court of Human Rights –and contrary to the High Court’s finding on Monday– the threat that he poses to Irish national security cannot be taken into account when deciding whether or not he should be deported.  If the existence of such a real risk is established the Irish Government simply cannot deport him to the proposed receiving state without violating Ireland’s human rights obligations under the European Convention on Human Rights. On Wednesday, 30 December, the European Court of Human Rights indicated a rule 39 interim measure to the Irish Government, which means that even if the injunction is lifted by the Court of Appeal the Government cannot, without violating the European Convention, deport the man until his case has been fully heard.

This case provides an example of the friction that can often arise between national security and the protection of individual human rights. In many ECHR contracting states deportation is often the preferred option in national security cases. This is because information indicating that the person is a threat may be inadmissible as evidence in a criminal trial or because such a trial may require the disclosure of information that could jeopardise on-going security operations. Because of these sensitivities some governments feel it vital to maintain the ability to deport individuals identified as threats to national security. The restraint of deportations under the ECHR has therefore long caused consternation among some ECHR contracting states where deportation plays a significant role in counterterrorism policy. This has seen the advent of the negotiation of diplomatic agreements with potential receiving states and the use of special closed-evidence tribunals such as the Special Immigration Appeals Commission in the UK.  The outcome of the current case may raise important questions about how the Irish legal system is equipped to handle such challenges.

Deportation, ISIS and the Irish Courts

Isis, the Caliphate and new states

 _75935223_iraq_syria_isis_caliphate_20140630_624_v1The rapid advance of Isis, (The Islamic State in Iraq and the Levant/Islamic State in Iraq and Syria or Islamic State in Iraq and al-Sham), its renaming of itself as “Islamic State” combined with the declaration of a Caliphate and added to recent statements made by the regional government of Iraqi Kurdistan around its potential future have brought questions as to the continued existence of Iraq and potentially, Syria, as states to the fore. In their statement declaring a Caliph, Isis have explicitly referred to the Sykes-Picot Pact (the division by the UK and France of former Ottoman Territories during the First World War, for a repudiation of the claim that the colonial period has some role to play, see here) as coming to an end. In doing so, Isis are making use of the coverage of the First World War anniversaries in the West (for example ceremonies this weekend on the 100th anniversary of the assassination of Archduke Franz Ferdinand in Serbia) questioning the aims of that war and the narrative of the so-called “democratic” states standing for freedom against the imperial powers at Europe’s centre but also the legitimacy of the present status of Iraq and Syria from their inception as states following the collapse of the Ottoman Empire. In doing so Isis are attempting to challenge the tenets of legitimacy under which statehood currently operate but perhaps in considering their own claims to statehood ought to consider whether the same tools that brought Syria and Iraq into fruition may be employed again. The broader question for international law is whether this question of statehood ought to rest on apparently ‘objective’ factors that have little to do with internal legitimacy or historical events and ought to be replaced with a normative, perhaps human rights framework, or whether the present state of law is preferable even with its apparent lack of normative code.

Their claim to legitimacy stems quite clearly from an interpretation of Islam that enables Isis to act as they have but within these arguments there is a clear narrative conforming to the traditional claims to statehood and are interesting when set alongside other contemporary debates such as Ukraine and Kosovo. Traditionally international law has not cared as to the internal character of a state and the existence of a theocracy is certainly no bar given the acceptance of the Vatican (Holy See) or Iran as states. Indeed, by the early 1980s most states had stopped recognising governments on the basis that state recognition was what was required for international law and the recognition of governments was a political decision. Recent actions by European states as well as the US and Russia regarding the Arab Spring or the Ukraine does open the possibility that this policy may have changed as the Cold War political exigencies that caused the initial change are no longer relevant. Thus Isis’ character as a government is no bar to statehood. Of course this is not to suggest that other elements of international law such as rights pertaining to women, minorities and freedom of thought or expression would not be violated but rather to clearly argue that this is not related to statehood as generally accepted within international law. EU states did require the former Yugoslav and USSR Republics to conform to human rights protection before recognising them but this has not been replicated with any uniformity since that period. The UN aims at universal membership and thus is highly unlikely it would bar Isis’ Islamic state from membership if it to be recognised as a state.

Statehood as outlined in the Montevideo Convention requires;

(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states

In their statement today Isis claimed to fill the first and second criteria by making a definite claim to territory and population that runs from ‘northern Syria to the Iraqi province of Diyala north-east of Baghdad.’ Of course a claim does not necessarily reflect reality. Large swathes of these territories have very sparse populations and certainly both Damascus and Baghdad would argue that these borders are contested even if they currently do not exercise firm control over them. While there are no temporal requirements for control of population or territory when these are combined with the other two elements of Montevideo some form of long-term governance does appear necessary. Governments, as already discussed, do not have to conform to any particular form but the normal activities of governance such as control of the use of force or the functioning of utilities combined with some of revenue collection would indicate a government in control. Currently it is unclear as to whether Isis would meet such a standard. The last criteria, the capacity to enter into relations with other states, does not actually require other states to do so just that this is possible. For Isis this criteria does appear lacking if social media is discounted. While of course the entire legitimacy of such criteria as Montevideo could be dismissed by Isis in all probability it is what will be applied by other states. One potential barrier may be the right to self-determination which would require some form of consultation with the populations that are controlled by Isis but in itself self-determination is not a right to statehood. Whether self-determination can put a bar on declaring statehood once the other criteria are satisfied is open to question and has not been resolved by a recent International Court of Justice Advisory Opinion on Kosovo which touched upon this issue.

In contrast to Isis, the Government in Kurdish Iraq appear far better placed to fulfill these criteria though the advance into Kirkuk makes at least some of its border disputable but also gives it a further source of revenue. Their current boundaries are defined, (even if they intend to make further claims in Turkey or Iran), there is a permanent population (albeit with a current influx of refugees), there is a government and this government has representatives in other states, although they are not currently at the status of ambassador. The non-recognition of a new Islamic State or a new Kurdish state does not necessarily mean either the continuation or disappearance of Iraq and Syria. The rump of either can continue, as Ukraine and the former Yugoslav states have clearly demonstrated. While Isis’ claims cause an existential threat to all states in the region the Kurdish question is more problematic for Turkey, Iran and Iraq. The malleability of state definitions leaves open a range of possibilities for those states potentially wishing to recognise the latter over the former but the broader issue of the legitimacy of governments remains a political query where states have to decide whether they are going to claim to have normative values, including human rights particularly with regard to women, or whether statehood will be the de minimus Montevideo requirement only for recognition.

New borders are possible as are new states. The recent up surge of territories claiming statehood (in Ukraine, in Georgia, within Russia, Kosovo, potentially Scotland or the Basque region) may slowly lead to a change in how we go about identifying new states that sets a clear break between the Montevideo criteria and what followed the break-up of the USSR and Yugoslavia, but at present, the law appears devoid of any claim to require a government to be democratically elected, representative or that it grants any form of rights to its citizens.

Isis, the Caliphate and new states